Justices May Weigh Reporter’s Privilege|for the First Time in Decades

(CN) – Ordered to testify as to who provided him with confidential state secrets, New York Times reporter James Risen will ask the Supreme Court to take up his case. Risen, a two-time Pulitzer Prize-winning journalist, incorporated information he allegedly received from former CIA operative Jeffrey Sterling into Chapter 9 of his 2006 book “State of War.” The section focuses on “Operation Merlin,” a botched attempt by the CIA to have a former Russian scientist pass obviously fake nuclear blueprints to Iran. Sterling now stands accused under the Espionage Act for mishandling national defense information, and the government says Risen alone can identify Sterling as his source. U.S. District Judge Leonie Brinkema denied prosecutors’ repeated requests to compel Risen to identify his source, finding that Risen has qualified reporter’s privilege under the First Amendment. But the 4th Circuit reversed in July 2013, finding that “there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.” After that court declined to hear the case en banc in November, Risen petitioned the U.S. Supreme Court for a writ of certiorari. The high court placedU.S. v. Sterling on the docket for certiorari consideration Monday. “Every day in newsrooms across this country, reporters gather information of enormous import to the public from sources who only agree to disclose that information if the reporters will keep their identities confidentiality,” Risen’s petition says. The Supreme Court last ruled on reporter’s privilege over 40 years ago in Branzburg v. Hayes, where a reporter observed crimes such as the synthesis of hash from marijuana. But Branzburg is qualitatively different than this case, “where the alleged crime is the leak itself,” or “the communication of newsworthy information,” Risen said, urging the court to take the case. Until the Supreme Court makes its decision, the 4th Circuit agreed to stay further proceedings in the case, which would require Risen to testify. Sterling himself opposed the stay, saying that he “wants this case to be tried and resolved so that he can get on with his life.” The government did not oppose the delay. If the high court does not take the case, or if it rules against the reporter, Risen’s refusal to testify could land him in jail. A group of 29 news outlets and nonprofits filed an amicus brief urging the Richmond-based 4th Circuit to support Risen’s First Amendment claim. His Supreme Court appeal will likely garner even more amicus support from the press.